Divorce FAQ

Many couples these days are realizing how helpful prenuptial agreements could be when they come to a point where they actually could benefit from it. There are a lot of preconceived notions when it comes to prenuptial agreements and their role in divorce, although not all of them are correct.

What can prenuptial agreements help you with?

Prenuptial agreements can have many goals, depending on what people who made it have in mind. Here are a few things that prenups can help you with during the marriage as well as if the marriage would be dissolved in the future through divorce:

• Protect finances by keeping them separate - During divorce, states will treat property accumulated during the marriage as marital or community property regardless of whether the property is under the name of one person or both. There are instances where people want property to be considered separate even after marriage. Putting this in a prenuptial agreement can help you keep your properties separate.
• Protect finances by keeping debts separate - It's not just properties that can be shared during a marriage but also debts. Most people bring debts into the marriage because not all people get married with a clean financial slate. Should your partner default on his/her debt, creditors may demand that community property be used to satisfy the payment of the debt. In cases of people who want to divorce, they may be obligated to pay part of their ex's debts even though they did not benefit from the debt. Specifying debt protection in a prenup can keep your debts separate.
• Prevent a property from being sold - If you have a family heirloom or any other property (real estate, stocks, etc.) that you want to keep in the family, specifying this in the prenuptial agreement will prevent the property from being sold or divided during divorce or even during the marriage. Even property that you expect to be passed on to you as an inheritance can be covered by provisions in the prenuptial agreement.
• Clarify marital responsibilities - A prenuptial agreement can be a good way to clarify what you expect your future spouse to do after the marriage regarding financial matters. Details such as who will pay the household bills, who will pay for credit card charges, how insurances will be bought and maintained during the marriage and even after divorce can be specified in a prenuptial agreement.
• Arrange for financial protection for children from previous marriages - Children from previous marriages can be given sufficient financial protection while within the marriage, after the divorce, or if the parent dies. It's an effective and essential part of a prenuptial agreement in order to provide protection to your children before you tie the knot with someone else.

What you can't (or shouldn't) do with a prenup.

There are things that you can't do in a prenup as per state laws, and there are things that you shouldn't do as a matter of common sense. Even if the law allows you to do such things, it's best if you didn't. Here are a few examples:

• Determine child support/visitation rights - Some people waive their right to child visitation or child support in their prenuptial agreements, for some reason. Not only is this an unwise thing to do, no state will honor such an agreement. Including this in the prenuptial agreement will put into jeopardy the other parts which are valid and useful. State laws consider the welfare of children to be something that is a matter of public policy. Anything you agree upon in private which would affect or impair a child's wellbeing (the right to be supported by a parent financially and to establish a relationship with a parent) will be considered void.
• Waive the right to alimony - Some states allow people to include waiving the right to alimony in their prenuptial agreements, although this is something that is still not entirely accepted. Even states that accepts such an agreement look closely into the situation surrounding the divorce and the prenups. For practical reasons, you shouldn't give up your right to spousal support, even if you don't think the marriage will end up in divorce. Keep in mind that most people marry without thinking their marriage will end up in divorce. Should you still want to include this in the prenuptial agreement, you should consult the state laws and see if they will honor this part of the agreement or if this will not be honored and end up jeopardizing other parts of the agreement as well.
• Encourage one or both parties to think about divorce - It's one thing to make an agreement about how to split up property and take care of children from previous marriages after divorce, it's another thing entirely to encourage divorce. Divorce can be encouraged in prenuptial agreements by detailing how the community property will be divided during divorce (which is different from keeping properties separate) and the likes. Some courts may allow this, but will still take a hard look into the details of the divorce and prenuptial agreement to see if an incentive was offered for divorce within the agreement.
• Agreements that are not about finances - Domestic and relationship issues are not part of things that can be legally binding within the prenuptial agreement. For example, you cannot include "must give me flowers every month" as part of the agreement because it is not financial in nature.

Considering having a prenuptial agreement drawn doesn't automatically mean that you have no faith in the marriage. In most situations, it's just a matter of looking out for yourself should situations change in the future. It's best to have a family lawyer take a look at the prenuptial agreement before you sign it.